In a recent post at Mirror of Justice on May 16, Robby George was able to identify only two justices (White and Black) appointed by Democratic Presidents in modern times that he could approve – those who he said applied what he calls “constitutionalist” premises. Judges are constitutionalist in Robby’s sense only to the extent to which they confine themselves to the “text of the Constitution, the logical presuppositions and implications of its provisions, its structure, and its publicly understood historical (or ‘original’) meaning.”
In response to an earlier post of his, I asserted that Robby’s limitation on constitutional sources has been rejected in practice by the overwhelming majority of Supreme Court justices in modern times. I suggested that constitutionalism is Robby’s theory, not the Court’s. In other words, if a sociologist examined what justices do, he or she would recognize that the practice of constitutional interpretation is not confined to Robby’s sources. In fact, justices look to language, history, structure, precedent, policy, and occasionally the Court’s power (or limits thereof) as constitutional sources in arriving at constitutional interpretations.
There are many who say that justices who use policy arguments (based on morality or practicality or efficiency) are not doing interpretation, but are engaged in legislative reasoning. This is a normative institutional claim, not a descriptive claim of what justices actually do. Moreover, the community of discourse in which constitutional interpretation is situated is not a open-ended as legislative reason. Justices cannot do whatever they want simply because policy is a constitutional source. For example, the Constitution does not guarantee adequate food, clothing, education, housing, and health care to all. As Henry Monaghan once said, we do not have a “perfect Constitution.” In my view, the Constitution is an unjust document because it fails to protect the poor; I do not think it would be appropriate to use constitutional interpretation to change that; the policy arguments one can use are limited by the history and tradition in which our Constitution is embedded.
Robby points to Ronald Dworkin’s article in the New York
Review of Books: A Moral Reading of the Constitution. Dworkin say that justices
do not admit they are making moral arguments though they should. I think this
is incorrect even as to moral arguments (they do explicitly make moral arguments), but it is blatantly false if it is
intended to suggest that justices do not routinely make policy arguments.
Policy arguments permeate first amendment discourse for example. In the recent
Stevens case the Court made an attempt to explain the exceptions to first
amendment protection by reference to history. But the fact is that the Court
protects far more speech than was protected at the time of the founding (think
of defamation and advocacy of illegal action) and the greater protection has
been developed by policy arguments. The use of standards of review in equal
protection simply states weights for policy arguments. The same is true in the
commercial speech area and the time, place, and manner area. Policy analysis is
a part of constitutional interpretation; it is a part of constitutional law.
The term “constitutionalist” understood in a descriptive sense would include
policy. Robby's constitutionalist in fact is an anti-constitutionalist.
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